Kelly Chavez v. Martin J. O'Malley

96 F.4th 1016
Court of Appeals for the Seventh Circuit·Decided March 22, 2024·No. 23-1196·Published·Cited by 61 cases

Opinion

In the

United States Court of Appeals For the Seventh Circuit

No. 23-1196 KELLY J. CHAVEZ, Plaintiff-Appellant,

v.

MARTIN J. O’MALLEY, Commissioner of Social Security, Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division.

No. 1:22-cv-00062-WCL — William C. Lee, Judge.

ARGUED DECEMBER 5, 2023 — DECIDED MARCH 22, 2024

Before HAMILTON, BRENNAN, and ST. EVE, Circuit Judges. BRENNAN, Circuit Judge. Kelly Chavez has suffered from various mental and physical impairments for many years. After she was denied supplemental security income, an administrative law judge conducted a hearing at which a vocational expert testified. The ALJ found that Chavez could perform 2 No. 23-1196

jobs that existed in significant numbers in the economy and affirmed the denial. The district court affirmed the ALJ’s findings . Chavez contends that the vocational expert did not provide substantial evidence in support of the ALJ’s decision, but we disagree and affirm.

I. Background

Chavez applied for supplemental security income in 2019, asserting she had been disabled since 2007. Her application was denied initially and on reconsideration. She requested and received a hearing before an ALJ in 2020 during which she objected to the reliability of a vocational expert’s testimony about job number estimates. The ALJ agreed that the estimates were not reliable and ordered a supplemental hearing .

A. The Supplemental Hearing Chavez and a new vocational expert, Sarah Holmes, testified at the April 2021 supplemental hearing. Holmes has served as a vocational expert witness in Social Security matters since 2018 and has board certifications as a Certified Rehabilitation Counselor and Licensed Professional Counselor. Chavez’s counsel did not object to Holmes’s qualifications.

Holmes testified that a person with Chavez’s age, background , and ability to perform a reduced range of light work would be able to perform several light exertion jobs, including cleaner, office helper, and storage rental clerk. She provided a corresponding number from the Dictionary of Occupational

No. 23-1196 3

Titles (“DOT”) for each occupation.1 Holmes estimated those occupations existed in the following numbers in the national economy: 222,000 cleaner jobs, 14,000 office helper jobs, and 63,000 storage rental clerk jobs. Holmes explained that those jobs were examples, not an exhaustive list, and she testified that there were another 24,700 representative jobs that Chavez could perform at the sedentary level.

After Holmes testified, Chavez’s counsel asked her how recent the national-job numbers were. Holmes said she used the most recent available data, which was from 2021. She explained that she used a software program, Job Browser Pro, to estimate the number of jobs. That program uses data from the Bureau of Labor Statistics to provide job numbers by DOT title. Chavez’s attorney then questioned Holmes:

Q: So, tell me what formula … Job Browser Pro uses to weight the numbers in the [Standard Occupational Classification (“SOC”)] codes, to weight the DOT categories and the SOC codes? A: Now, I would have to read that specifically from the information that I have here. I can’t tell you exactly off hand that particular data.

Q: So, the answer is that you’re sitting there, you don’t know, is that correct? A: As I’m sitting here right now, correct. I could read the summary and abstract for SkillTRAN

1 DOT 323.687-014, 1991 WL 672783 (cleaner, housekeeper); DOT

239.567-010, 1991 WL 672232 (office helper); and DOT 295.367-026, 1991 WL 672594 (storage rental clerk).

4 No. 23-1196

estimating employment numbers, which I have in front of me, but I don’t know it just off the top of my head.2 Chavez’s attorney did not ask Holmes to read the summary and began a new line of questioning.

Chavez’s counsel objected to the reliability of Holmes’s testimony, including:

 That it was insufficient because she “cannot describe the weighing formula from Job Browser Pro”;

 Any “top down weighing methodology” could not be reliable given the “mismatching of the SOC codes and the DOT codes”; and  Unless there was a rational way of severing the different skill and exertional levels within the SOC codes, “any weighing of a DOT title within a SOC code cannot yield a reliable result.”

The ALJ considered those objections and asked Holmes clarifying questions. Holmes explained that, in Job Browser Pro, jobs “are broken out by DOT title and not by SOC code.” When asked if other vocational experts use Job Browser Pro,

2 SkillTRAN is the company that produces the Job Browser Pro soft-

ware. See Job Browser Pro, SKILLTRAN LLC, https://skilltran.com/index .php/products/pc-based-solutions/job-browser-pro (last visited March 22, 2024).

The document that Holmes referenced is publicly available. See SKILLTRAN LLC, SKILLTRAN PROCESS FOR ESTIMATING EMPLOYMENT NUMBERS 1–10 (2020), https://skilltran.com/pubs/DOTempnum _method.pdf.

No. 23-1196 5

Holmes responded: “I’m not saying other people don’t use other things, but every person that I know that does this work, uses, relies upon Job Browser Pro.”

Chavez’s counsel then asked Holmes if “Job Browser Pro uses a formula in order to weight DOT title occupations that exist within a SOC code, in order to reach their number for the DOT title.” Holmes confirmed that was correct. Chavez’s attorney did not pose any more questions about the formula.

B. The ALJ’s Decision In August 2021, the ALJ ruled that Chavez was not disabled and denied Chavez’s application for supplemental security income. Applying the familiar five-step process set forth in 20 C.F.R. § 416.920, the ALJ found that Chavez had numerous severe impairments. Those include migraine disorder, asthma, lumbar and cervical degenerative disc disease, neuropathy of the left leg, acoustic neuroma, obesity, social anxiety disorder, generalized anxiety disorder, depressive disorder, and attention deficit hyperactivity disorder. The ALJ also deemed Chavez to have the residual functioning capacity to perform light work as defined in 20 C.F.R. § 416.967(b), with specific exceptions. The ALJ concluded that Chavez could not perform her past work, but that she could perform jobs existing in the national economy such as cleaner, office helper, and storage rental clerk.

The ALJ overruled Chavez’s objections to Holmes’s testimony :

The vocational expert was found to be a qualified expert by this agency, and [Chavez’s] counsel agreed to this prior to her testimony. The vocational expert stated that the jobs she offered 6 No. 23-1196

were not an exhaustive list of possible jobs that would satisfy the hypothetical and that her job numbers were based on numbers given by the [Bureau of Labor Statistics] and JobBrowser Pro, which gives the number of jobs by the DOT code. The vocational expert testified that this is standard procedure among the vocational experts she knows. … [B]ased on careful consideration of the totality of the record, the [ALJ] finds the testimony of the [v]ocational [e]xpert conforms to the rules and regulations of the Social Security Administration and is therefore accepted .

Chavez appealed, and the Appeals Council denied review. She then sought judicial review.

C. The District Court’s Decision The district court affirmed the ALJ’s findings. Because Holmes identified the source for her job number estimates, offered to provide additional information on the underlying data source, and gave a straightforward explanation for the reliability of the numbers she provided, the district court concluded that the ALJ’s decision was supported by substantial evidence. So, the district court granted judgment for the Commissioner .

On appeal, Chavez asks us to conclude that Holmes’s testimony is unreliable, and that substantial evidence does not

No. 23-1196 7

support the ALJ’s finding that Chavez could perform jobs that existed in significant numbers in the economy.3

II. Discussion

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Kelly Chavez v. Martin J. O'Malley, 96 F.4th 1016 (7th Cir. 2024).

96 F.4th 1016 (Kelly Chavez v. Martin J. O'Malley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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